| Kessler v Kessler |
| 2008 NY Slip Op 00659 [47 AD3d 892] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Lynda Kessler, Respondent, v John A. Kessler, Appellant.Kramer Kozek, LLP, Nonparty Respondent. |
—[*1] Wiggins, Kopko & Crane, LLP, Ithaca, N.Y. (Walter J. Wiggins of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals, (1) as limited by hisbrief, from stated portions of a judgment of the Supreme Court, Westchester County (Giacomo,J.), dated April 18, 2006, which, upon findings of fact and conclusions of law dated April 18,2006, made after a nonjury trial, inter alia, directed him to pay child support in the sum of $3,520per month and awarded the plaintiff one half of the sum of $492,610, representing income anddistributions from his solely-owned corporation, (2) from a money judgment of the same courtdated August 28, 2006, which is in favor of the attorney for the plaintiff and against him in theprincipal sum of $100,000, (3), as limited by his brief, from an order of the same court enteredOctober 16, 2006, and (4), as limited by his brief, from stated portions of an amended judgmentof the same court dated November 9, 2006, which, upon the order entered October 16, 2006, interalia, directed him to pay child support in the sum of $3,520 per month, directed him to pay thesum of $42,100 as retroactive child support, directed that he pay 67.6% of (a) all child careexpenses of the plaintiff, retroactive to March 29, 2006, (b) the cost of the health insurance of theparties' children, (c) unreimbursed medical, dental, and related expenses of the parties' children,and (d) the children's extracurricular activities, awarded the plaintiff the sum of $278,002.08 asher distributive share (one half of $556,004.15) of certain real estate accounts, directed him topay the sum of $8,785.03 [*2]directly to the plaintiff for certainunpaid child support "add-ons," directed that the defendant pay the plaintiff at a rate of not lessthan $8,000 per month until the sum of $328,877.11 is paid in full, and awarded the plaintiff onehalf of the sum of $492,610, representing income and distributions from his solely-ownedcorporation.
Ordered that the appeals from the judgment dated April 18, 2006 and the money judgmentdated August 28, 2006 are dismissed, without costs or disbursements, as the judgment datedApril 18, 2006, and the money judgment were superseded by the amended judgment datedNovember 9, 2006; and it is further,
Ordered that the appeal from the order entered October 16, 2006 is dismissed, without costsor disbursements; and it is further,
Ordered that the amended judgment dated November 9, 2006 is modified, on the law, thefacts, and in the exercise of discretion, by deleting the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 15th, 16th,19th, and 20th decretal paragraphs thereof, and by adding thereto a new decretal paragraphdirecting the plaintiff "to make all family photographs available to the defendant for 30 days sothat he may duplicate them"; as so modified, the amended judgment is affirmed insofar asappealed from, without costs or disbursements, and the matter is remitted to the Supreme Court,Westchester County, for further proceedings in accordance herewith, and thereafter for the entryof a second amended judgment; and it is further,
Ordered that in the interim the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, and 16th decretal paragraphsof the amended judgment shall remain in full force and effect.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the amended judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are broughtup for review and have been considered on the appeal from the amended judgment (seeCPLR 5501 [a] [1]).
The parties were married in New York on June 8, 1996. Four days before their marriage, theparties entered into a prenuptial agreement (hereinafter the agreement) that essentially left theplaintiff with little or nothing in the event that the parties divorced. After the plaintiffcommenced this action on March 25, 2002 the parties agreed that the Supreme Court should firstdetermine the validity and enforceability of the prenuptial agreement. The Supreme Court(Spolzino, J.), in an order entered April 19, 2004, refused to void the entire agreement and foundthat the defendant had not breached the agreement, but voided, as unconscionable, that part of theagreement waiving the right to an attorney's fee. The defendant appealed from the latter part ofthe order, and this Court, in an opinion by Justice Ritter (Kessler v Kessler, 33 AD3d 42 [2006]), affirmed.
In pertinent part, the parties' prenuptial agreement provides that "[a]ny property acquiredduring the course of the marriage . . . with [the defendant's] sole and separate fundsand which is owned in his sole name or with other person or persons other than [the plaintiff]"will be deemed the defendant's separate property. Further, in the event of a termination of themarriage other than by death, "[w]hatever property the parties have accumulated during thecourse of their marriage, excluding separate property as defined herein . . . shall bedivided between the parties, in equal shares, when practicable." Further, paragraph 6 of theprenuptial agreement obligated the parties, [*3]during themarriage, to "pool certain of their income for the benefit of each other and for the maintenance ofthe household, by making regular deposits to a checking or similar account (hereinafterHousehold Account). Both parties will make regular and equal deposits to the HouseholdAccount." The evidence adduced at trial established that both parties complied with paragraph 6.
The Supreme Court categorized, as marital property, the sum of $492,610, representingincome and distributions from the defendant's solely-owned corporation, Indoor Courts ofAmerica, Inc. (hereinafter ICA), that the defendant deposited into his separate so-called "realestate accounts." This was erroneous, as there is no evidence that the defendant deposited thosefunds into his separate real estate accounts to evade the requirement set forth in the prenuptialagreement that he make "regular and equal deposits" into the joint household account. Instead,the evidence demonstrates that he used this "excess" income to maintain the marital home and topurchase and maintain real property solely owned by him or his closely-held corporations.Accordingly, no ground exists to deem those funds marital property.
Turning to the Supreme Court's calculation of the defendant's adjusted annual gross income(hereinafter AGI) for purposes of the Child Support Standards Act (hereinafter CSSA) (seeDomestic Relations Law § 240 [1-b]), the Supreme Court erred in not reducing thedefendant's gross rental income by the amount of his expenses for those rental properties (i.e.,real estate taxes, out-of-pocket expenses, insurance, etc.) (see Domestic Relations Law§ 240 [1-b] [b] [5] [ii]; Coull vRottman, 35 AD3d 198, 199 [2006]; Cassara v Cassara, 1 AD3d 817, 820 [2003]).
The Supreme Court's award to the plaintiff of $100,000 as an attorney's fee was a providentexercise of its discretion and will not be disturbed (see Domestic Relations Law §237 [a]; Matter of Pane v Pane, 26AD3d 386 [2006]).
In addition, although the plaintiff claims that she has provided the photographs requested bythe defendant, rendering academic his request for an order directing her to provide suchphotographs, she did not provide any specifics on when and how she produced the requestedphotographs; in light of the defendant's unequivocal denial that such production occurred, theamended judgment must be modified to add a decretal paragraph directing the plaintiff to makeall family photographs available to the defendant for 30 days so that he may duplicate them.
In summary, upon remittal, the Supreme Court must (1) reduce the plaintiff's equitabledistribution share of the defendant's real estate account funds from one half of the sum of$556,004.15 to one half of the sum of $63,394.15, a sum which the defendant now concedes issubject to equitable distribution, and (2) recalculate the defendant's AGI for CSSA purposes byreducing his AGI by the amount of his expenses for the rental properties, and accordinglyrecalculating the parties' obligations for child support and related expenses, pursuant to theCSSA.
The defendant's remaining contentions are without merit. Ritter, J.P., Florio, McCarthy andDickerson, JJ., concur.